Carey v. Director of Revenue

Appeal
from the Circuit Court of Franklin County Hon. Stanley D.
Williams

ROBERT
G. DOWD, JR., Judge

The
Director of Revenue appeals from the judgment reinstating the
driving privileges of Randal Carey, which were suspended
after his arrest for driving while intoxicated. The Director
argues that the trial court erred in excluding from evidence
the breath test results showing Carey's blood alcohol
content ("BAC") was over the legal limit. We
reverse and remand.

On June
6, 2015, Carey was arrested for driving while intoxicated
after a traffic stop, during which he performed poorly on
field sobriety tests, displayed some indicia of intoxication
and told the arresting officer he had been drinking. He
agreed to provide a breath sample for testing on an
Alco-Sensor IV breath analyzer, the result of which showed
his BAC was .142 percent, well over the legal limit of .08
percent. Carey's license was suspended, and he filed a
petition for a trial de novo.

The
Director's evidence at the trial consisted of the
testimony of the arresting officer and a packet exhibit
containing the breath test results, documents related to
maintenance of the breath analyzer and supporting documents
for the arrest. According to the maintenance report, the
breathalyzer was verified and calibrated on May 8, 2015 using
a breath alcohol simulator with a standard simulator
solution. The maintenance report contained information about
the solution and the simulator, including the simulator's
temperature, serial number and an expiration date of February
23, 2016. That expiration date corresponds with one of the
two simulator calibration reports included in the
Director's exhibit, certifying that the breath alcohol
simulator was tested using standards traceable to the
National Institute of Standards and Technology
("NIST") with a particular thermometer, identified
by serial number. One is dated February 23, 2015 and expires
on February 23, 2016 ("the 2015 certification"),
and the other is dated January 28, 2014 and expired January
28, 2015 ("the 2014 certification"). The
maintenance report indicated that the machine was operating
within specifications.

Carey
objected at the outset of trial to admission of the
Director's packet exhibit on the ground that the
certifications contained hearsay.[1] The court did not rule on this objection
and received the exhibit into evidence subject to a later
determination about the admissibility of specific portions
thereof. When the arresting officer who administered the
breath test was asked to testify to the breath test results,
Carey again objected. Carey argued that although the Director
submitted the 2014 and 2015 certifications showing the
simulator had been tested in those years, there was no proof
of certification in 2013. Carey contended the applicable
regulations for maintaining the breathalyzer required
certifications from 2013 and every year thereafter and that
must be literally and absolutely followed in order for the
Director to satisfy its burden of production and
persuasion.[2] The court admitted the
exhibit "for purposes of the record" and to avoid
having to reopen proceedings should the court later determine
it was inadmissible for lacking a 2013 certification. The
evidence concluded shortly after this objection, and the
court took the matter under advisement.

In its
judgment, the court agreed that the applicable regulations
for admission of breath analyzer results must be strictly
followed and by failing to present evidence that the breath
analyzer was properly calibrated in 2013 the Director failed
to comply with those regulations. The court sustained
Carey's objection to the portion of the exhibit
containing the BAC results on this ground. Thus, while the
trial court concluded that there was probable cause to arrest
Carey for DWI, it held that the Director failed to establish
his BAC and set aside the order suspending Carey's
license. The Director appeals.

The
Director has the burden to establish by a preponderance of
the evidence a prima facie case for suspension of a
driver's license by introducing evidence that there was
probable cause for arresting the driver for an
alcohol-related offense and that the driver's BAC
exceeded the legal limit of .08 percent. Gallagher v.
Director of Revenue, 487 S.W.3d 24, 26 (Mo. App. E.D.
2016). To establish that a driver's BAC was over the
legal limit, the Director may introduce evidence of the
results of a breath analyzer test. Id. To lay a
foundation for admission of those results, the Director must
establish that the test was performed using the approved
techniques and methods of the Department of Health and Senior
Services, by an operator holding a valid permit and on
equipment and devices approved by the Department.
Id.

The
Department has promulgated regulations regarding the
maintenance of breath analyzers that must be strictly
followed in order for the results taken from that machine to
be admissible at trial. "Maintenance checks" are
defined by the Department as "the standardized and
prescribed procedures used to determine that a breath
analyzer is functioning properly and is operating in
accordance with the operational procedures established by the
Department." 19 CSR 25-30.011(2)(F). A report of the
maintenance check must be recorded on a specified form
depending on the type of breathalyzer. 19 CSR 25-30.031(7).
Maintenance checks must be performed "at intervals not
to exceed thirty-five (35) days." 19 CSR 25-30.031(3).
If the Director offers a maintenance report showing that a
maintenance check has been performed on the machine within 35
days prior to the driver's breath test, then he has
demonstrated compliance with this regulation. See
Sellenriek v. Director of Revenue, 826 S.W.2d 338, 340
(Mo. banc 1992). As noted above, the maintenance report in
this case showed a maintenance check was performed on this
machine on May 8, 2015, less than 35 days prior to the breath
test on June 6, 2015.

The
Department also has rules regarding the equipment used to
perform these maintenance checks, namely standard simulator
solutions and gas mixtures that can be used in verifying and
calibrating machines and simulators used in conjunction with
the standard simulator solution. See 19 CSR
25-30.051. Specifically, the Department requires "annual
checks" of the simulators:

Any breath alcohol simulator used in the verification or
calibration of evidential breath analyzers with the standards
simulator solutions referred to in sections (2) and (3) of
this rule shall be certified against a National Institution
of Standards and Technology (NIST) traceable reference
thermometer or thermo-couple between January 1, 2013, and
December 31, 2013, and annually thereafter.

19 CSR 25-30.051(4). This certification requirement became
effective December 31, 2012. Here, the Director showed the
simulator had been certified in 2014 and 2015.

Carey
contended and the trial court agreed that 19 CSR 25-30.051(4)
requires, as a foundational prerequisite to admission of a
driver's BAC, proof of certification beginning in 2013
and every year thereafter regardless of the date of the
relevant maintenance check or the date the driver's
breath was tested. On appeal, the Director contends such an
interpretation leads to absurd results and, instead, the only
certification that should be required to lay a foundation for
the admission of the driver's BAC result is the one in
effect-that is, not expired-at the time of the relevant
maintenance check-that is, the one done within 35 days before
the particular breath test at issue. We agree with the
Director.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Because
the trial court&#39;s ruling regarding admission of the BAC
in this case was based solely on interpretation of a
regulation, the issue before us is a question of law that we
review de novo. See Gallagher, 24 S.W.3d at 27.
Administrative regulations are interpreted under the same
principles of construction as statutes. Id. Our goal
is to ascertain the agency&#39;s intent and give effect
thereto by considering the plain meaning of the words used in
the regulation. Id. But we will not apply the plain
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.